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Alexander v. Tomlinson

August 15, 2007

RICHARD ALEXANDER, PLAINTIFF,
v.
KENNETH Y. TOMLINSON, CHAIRMAN, BROADCASTING BOARD OF GOVERNORS, DEFENDANT.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Plaintiff Richard Alexander has sued the Chairman of the Broadcasting Board of Governors ("BBG"), alleging that the BBG discriminated against him on the basis of race, age, and disability; retaliated against him for filing an EEO complaint; and subjected him to a hostile work environment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17; 42 U.S.C. § 1981; the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621-634; and Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791. Defendant has filed a motion for summary judgment, which, for the reasons explained herein, will be granted.

BACKGROUND

Plaintiff's employment with BBG began in 1985, when he was hired as a GS-11 broadcast technician for Radio Martí in BBG's Office of Cuba Broadcasting ("OCB"). (Pl.'s Ex. 1 ["Pl.'s Dep."] at 13-15.) In 1992, plaintiff, who is African-American, was promoted to the position of supervisory broadcast technician at the GS-12 level. (Id. at 15.)

In April 1996, legislation was passed mandating that OCB be relocated from Washington, D.C. to Miami, Florida. Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321, 1343 (1996). (See also Def.'s Statement of Material Facts Not in Genuine Dispute ["Def.'s Statement"] ¶ 3.) Thereafter, the employees' union entered into negotiations with the BBG concerning the move, resulting in an agreement between the parties concerning the process to be followed for reassigning employees to Miami and filling vacancies in Washington. (Def.'s Ex. 2 ["Poggioli Decl."] ¶ 7.)*fn1 The agreement provided that priority consideration for vacancies (announced or unannounced) in other areas of the agency would be given to OCB employees who had indicated on their "canvass letters"*fn2 an interest in remaining in Washington. (Agreement ¶ 1.b. (attached to Def.'s Ex. 23); see also Poggioli Decl. ¶ 11.) It also provided that BBG would seek employees in Washington who were interested in reassignment to OCB in Miami to participate in "job swaps" with OCB employees who wished to remain in Washington. (See Agreement ¶ 2.a.)

The relocation of OCB to Miami occurred in phases between 1996 and 1998. (Poggioli Decl. ¶ 9.) In June 2006, OCB circulated a memorandum regarding the schedule for relocating managers and supervisors in OCB's Department of Technical Operations to Miami. (Pl.'s Ex. 3; see also Def.'s Statement ¶ 4.) The memorandum set transfer dates for three managers/supervisors in 1996 but listed plaintiff's transfer date, and that of most of the others on the list, as "to be determined." (Pl.'s Ex. 3.) According to Ms. Poggioli's declaration, under the reduction in force ("RIF") procedures, positions were placed in competitive levels by type and grade, and positions within a particular competitive level were relocated based on seniority with the least senior employees being relocated first, followed by the more senior employees. (See Poggioli Decl. ¶ 9.) Although all OCB employees were offered their identical positions in Miami, employees did not receive a Formal Offer of Position until they were to be relocated. (Id. ¶¶ 8-9.) Because plaintiff had the most seniority in his competitive level, which included the other GS-12 supervisory broadcast technicians, he did not receive a Formal Offer of Position until April 1998. (Id. ¶ 9; Def.'s Ex. 5.)

In the meantime, plaintiff attempted to find other employment with the BBG so that he could remain in Washington, pursuing a job swap with a GS-12 radio production specialist for the Voice of America ("VOA") and applying for other permanent positions in the Washington area. (Pl.'s Ex. 4 ["Alexander Aff."] ¶¶ 7.A., 8.A.; Pl.'s Ex. 22 at 4-6 (plaintiff's Answers to Interrogatories No. 6 & 9); see also Am. Compl. ¶ 24.) These efforts, however, were unsuccessful. Thomas Warden, plaintiff's immediate supervisor, declined to approve the job swap (Alexander Aff. ¶ 7.A.; see also Def.'s Ex. 4 ["Warden Aff."] ¶ 7.A.), and plaintiff was not selected for any of the permanent positions for which he applied. (Pl.'s Ex. 22 at 4-6 (plaintiff's Answers to Interrogatories No. 6 & 9).) In May 1998, plaintiff was offered a term position as a radio broadcast technician with VOA; however, plaintiff declined the offer. (Poggioli Decl. ¶ 21; Alexander Aff. ¶ 8.A.)

On April 28, 1998, defendant issued to plaintiff a Formal Offer of Position, offering him a position in Miami "at the same title, series, grade, status and organizational unit" as his then-current position and providing for a small salary increase based on the locality pay for the Miami area. (Def.'s Ex. 5; Def.'s Statement ¶¶ 8-9.) The Offer included a reporting date of June 1, 1998, and indicated that plaintiff's relocation expenses would be paid. (Def.'s Ex. 5; Def.'s Statement ¶ 9.) Plaintiff accepted the offer on May 13, 1998, noting that his decision was "made under 'Economic and Mental Duress!'" (Def.'s Ex. 5.) The following month, defendant notified plaintiff that he would be required to report to work in Miami on July 9, 1998, but that date, too, was later extended. (Def.'s Ex. 6; Def.'s Statement ¶ 10; Pl.'s Dep. at 102-03.)

On July 8, 1998, plaintiff, who was then 57 years old, contacted the United States Information Agency's ("USIA")*fn3 Office of Civil Rights, and the following day, plaintiff had an initial counseling interview, at which time he complained that he had been discriminated against on the basis of race and age when two of his co-workers received permanent jobs with VOA in Washington, while he was only offered a term position. (Pl.'s Ex. 16; Pl.'s Ex. 5 at 2.)

Plaintiff thereafter reported to Miami on July 17, 1998. (Poggioli Decl. ¶ 22; see also Pl.'s Ex. 12.) Soon after his arrival, he requested and was given six weeks of annual leave to return to Washington to make preparations to move his family to Miami. (Id. at 1; Pl.'s Dep. at 103-04.) On October 5, 1998, the date that plaintiff was expected to return to work in Miami, he notified Warden that he was ill and indicated that his doctor would be providing documentation regarding his illness.*fn4 (Pl.'s Ex. 7 at 1; see also Pl.'s Ex. 5 at 7-8; Pl.'s Ex. 12 at 1.) Sometime the following week, Warden called plaintiff and advised him that he would be placed on AWOL status as of October 11, 1998, if he did not provide documentation of his illness. (Alexander Aff. ¶ 9.A.; Pl.'s Ex. 7 at 1; Pl.'s Ex. 5 at 8; see also Pl.'s Statement ¶ 5.) On October 14, 1998, plaintiff's psychologist, Dr. Nickole Scott Conerly, sent a letter to Warden indicating that plaintiff was suffering from severe anxiety and major depression disorder caused by the stress of learning that he would not have employment unless he relocated his family and recommending that plaintiff be granted a medical leave of absence to work on repairing his mental health. (Pl.'s Ex. 8; Def.'s Statement ¶ 14; Pl.'s Statement ¶ 6.) Based on Dr. Conerly's estimation that plaintiff's condition would require about six months of treatment, Warden approved six months of sick leave beginning October 5, 1998. (Pl.'s Ex. 9; Def.'s Statement ¶ 15.) In addition, as Dr. Conerly had indicated that plaintiff would be seeing a physician to rule out any medical disorders and that he may need to see a psychiatrist about medication, Warden requested that plaintiff provide him with medical certificates concerning any additional treatments related to his condition and directed plaintiff to provide a new current medical certificate in the event that he needed additional sick leave after April 5, 1999. (Pl.'s Ex. 9.)

On December 23, 1998, plaintiff filed a formal EEO complaint, again alleging that he had been denied equal treatment when two of his co-workers were placed in comparable permanent positions at VOA while he was only offered a term position, despite having greater seniority. (Pl.'s Ex. 17.)

On March 5, 1999, Warden wrote to plaintiff advising him that his current leave of absence would expire on April 5, 1999, and that he was expected to return to duty on that date. (Pl.'s Ex. 20.) The letter reminded plaintiff that if he needed additional leave beyond April 5, he should provide a current medical certificate, as well as certificates from his physician and psychiatrist as previously requested. (Id.) The letter also indicated that plaintiff's continuing absence was causing a hardship on OCB and that the office could not grant him an indefinite leave of absence. (Id.) Plaintiff responded on March 22, 1999, notifying Warden that he had been advised by his doctor not to return to work in Miami at that time, requesting that he be permitted to remain on sick leave indefinitely, and indicating that current medical information would be forwarded and that he would provide Warden with "ample notification if and when I am able to return to work in Miami."*fn5 (Pl.'s Ex. 7.) A few days later, Dr. Conerly sent another letter to Warden indicating that plaintiff was suffering from stress and a depressed mood and recommending that he be granted additional sick leave. (Pl.'s Ex. 10.) Warden thereafter approved plaintiff's request for additional sick leave but advised him that his absence could not go on indefinitely and that if he was unable to return to duty in the near future, Warden would "have no choice but to recommend that [his] employment be terminated."*fn6 (Pl.'s Ex. 11.)

On October 13, 1999, having heard nothing further from plaintiff as to when he expected to be able to return to duty, Michael Pallone, the director of OCB's Office of Technical Operations, wrote to plaintiff advising him that his continuous absence since August 13, 1998, constituted excessive use of leave and proposing to remove him from his position as a penalty. (Pl.'s Ex. 12.) The letter also advised plaintiff of his right to reply to the proposed action, which plaintiff did both orally and in writing the following month. (Id.; Pl.'s Ex. 21 at 1.) On December 17, 1999, Herminio San Roman, the Director of OCB, issued a written decision finding the charge of excessive use of leave to be supported by a preponderance of the evidence and indicating that plaintiff would be removed from his position effective January 3, 2000. (Id.) Prior to that date, however, plaintiff retired effective December 31, 1999. (Poggioli Decl. ¶ 22.) On December 24, 1999, plaintiff submitted a second EEO complaint, alleging that San Roman's decision to remove him from his position was "retaliatory harassment" and requesting that this action by San Roman be included in his original complaint. (Pl.'s Ex. 18.)

In April 2005, plaintiff instituted suit here, and on October 20, 2005, he filed an amended complaint. Plaintiff alleges that defendant discriminated against him based on his race and age by denying him a job swap, by failing to find a position for him in Washington, D.C. so that he would not have to relocate to Miami, and by effectively removing him from his position for excessive use of leave. Plaintiff also alleges that defendant retaliated against him by removing him from his position after he filed an EEO complaint; discriminated against him on the basis of disability; and subjected him to a hostile work environment.

ANALYSIS

I. Summary Judgment Standard

Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255; see also Wash. Post Co. v. U.S. Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989).

"A dispute about a material fact is not 'genuine' unless 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Haynes v. Williams, 392 F.3d 478, 481 (D.C. Cir. 2004) (quoting Anderson, 477 U.S. at 248). Thus, the non-moving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted). The moving party "is 'entitled to judgment as a matter of law' if the nonmoving party 'fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Haynes, 392 F.3d at 481 (quoting Celotex Corp., 477 U.S. at 322). "While summary judgment must be approached with special caution in discrimination cases, a plaintiff is not relieved of [his] ...


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